Adino & another v Mlongo [2025] KEELRC 79 (KLR)

Adino & another v Mlongo (Miscellaneous Cause E092 of 2024) [2025] KEELRC 79 (KLR) (23 January 2025) (Ruling)

Neutral citation: [2025] KEELRC 79 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Miscellaneous Cause E092 of 2024

Nzioki wa Makau, J

January 23, 2025

Between

Christine Akinyi Adino

1st Applicant

Blootex Company Limited

2nd Applicant

and

Benard Oduor Mlongo

Respondent

Ruling

1. The Applicants move the Court vide their application dated 11th November 2024. In it, they seek orders to review or set aside the Court's previous directive requiring them to deposit the entire decretal amount in court, failure to which leave to appeal out of time would automatically lapse. The Application is premised on the grounds apparent on its face, as well as the supporting affidavit sworn by Christine Akinyi Adino. The Applicants assert that due to financial constraints, they are unable to deposit the full decretal amount of Kshs. 507,400/-.

2. The Applicants further assert that for the past three years, they have been unable to secure any contracts, which has made it impossible to fulfill the Court's conditions. In light of this, the Applicants request that the court extends the 14-day period within which they were required to deposit the decretal amount to three months. Alternatively, they seek permission to deposit the logbook for motor vehicle registration number KBV 942P as security instead of the cash. Additionally, they contend that they have lodged an appeal via Kisumu ELRCA No. E067 of 2024 Christine Akinyi Adino & Blootex Company Limited v Benard Oduor Mlongo, which they believe has a high likelihood of success.

3. In response, the Respondent filed a Replying Affidavit dated 13th November 2024 sworn by himself, arguing that the Application is frivolous, constitutes an abuse of the court process, and is merely a strategy to deny him the fruits of his judgment. He points out that the 14-day period for depositing the decretal amount had already lapsed, meaning the application was filed out of time. He further contends that the Applicants' grounds do not meet the threshold for review, asserting that all indications point to unwillingness to pay. He references a call received from the 1st Applicant after service of the demand letter in which she vowed not to pay. The Respondent also claims that having previously worked with the Applicants, he is aware that they operate more than one bank account, and therefore, the bank statement provided does not accurately reflect their financial status.

4. Regarding the proposed vehicle as security, the Respondent challenges its adequacy, describing it as a salvage vehicle that is not worth the decretal amount. He also points out that no valuation of the vehicle has been submitted. The Respondent further disputes the Applicants' claim of a high likelihood of success in their appeal, asserting that this is far from the truth, given that the Applicants did not defend the original suit.

5. In reply to the Respondent’s Replying Affidavit, the Applicants filed a Supplementary Affidavit in which they attached a valuation report for the vehicle, indicating its market value as Kshs. 1,200,000/- and a forced sale value of Kshs. 850,000/-. Regarding the allegation that the Applicants maintain multiple bank accounts and possess other assets, the Applicants contend that the burden of proof lay with the Respondent to substantiate these claims. The Applicants reiterated that the Application is made in good faith and accurately reflects the financial situation of the 2nd Applicant.

6. The court issued directions regarding the filing of submissions on 20th of November 2024. However, by the time of writing this ruling, only the Applicants had filed submissions.

Applicants' Submissions 7. The Applicants submit that their undertaking to provide alternate security in the form of a motor vehicle, coupled with the demonstration of their inadequate finances, warrants the court's exercise of discretion in their favour. Additionally, they assert that granting the orders will serve the useful purpose of ensuring that the appeal being KISUMU ELRCA No. E067 of 2024 is not rendered nugatory. In support of this, they rely on the case of Nuh Nassir Abdi v Ali Wario & 2 others [2013] eKLR where the court held that discretion to vary, set aside, or review earlier orders should only be exercised if it would serve a useful purpose.

8. The Applicants further submit that, having approached the court in a timely manner and offered alternative security, they should not be excluded from the seat of justice for reasons of obstruction or delay. They cite the case of Muinde v Libya Oil Kenya Limited (Cause 78 of 2016) [2022] KEELRC 1589 (KLR) (2 June 2022) (Ruling) where the court opined that an application for review based on sufficient reason implies that no party should be denied access to justice unless they are culpable for evasion, obstruction, or delay. Regarding costs, the Applicants assert their entitlement to them, having successfully proven their application. They rely on Rule 70 of the Employment and Labour Relations Court (Procedure) Rules 2024, which stipulates that costs follow the event.

9. The application before the Court is one seeking, in essence, to enlarge time. The Court had issued orders upon the filing of a motion seeking stay. In the decision rendered, the Court gave a condition which is now what the Applicants seek to reverse. In the reply to the motion, the Respondent asserts the Applicants have made the application out of time as the 14 days had lapsed.

10. The Ruling delivered on 28th October 2024 in parre materia stated thus:Granted the intended appellants seem to have suffered from miscommunication or poor legal services which derailed their effort to file an appeal on time, the Court will grant conditional leave to file an appeal out of time. The Applicants must deposit the entire decretal sum in Court within 14 days of the Ruling failing which the leave granted will automatically lapse. [Emphasis supplied]

11. The order was clear, leave would automatically lapse. The word lapse means to come to an end altogether. The Oxford English Dictionary defines the word lapse to mean inter alia a failure to do something that happens as a particular event at a particular time. The word 'lapse' deployed in my Ruling was in the context of an event, marking the time when the doing of that thing would have to be done, failing which the doing of the thing would be meaningless after the time had passed. As such, the word 'lapsed' when used in this sense is to indicate something becomes ineffectual or void when done after the time allocated. In other words, neglect to exercise it within the limited time renders the doing of the act or thing, null and void.

12. In this case, the deposit is yet to be made despite the clear wording of the Order expressed in the final paragraph of the Ruling of 28th October 2024. The Applicants have admitted that they did not deposit the sum as ordered. They also did not move the Court before the lapse of 14 days but instead moved Court on the 14th day. The orders they sought to arrest had already taken effect by the time the matter came up meaning that the leave granted by the Court to file an appeal out of time had already lapsed. The attempt to seek stoppage of the order is akin to flogging a dead horse and in this case, it has no effect as there is nothing to do since the leave granted lapsed on 11th November 2024. The application by the Applicants is accordingly dismissed albeit with no order as to costs since the Respondent refused to file submissions on the motion.It is so ordered.

DATED AND DELIVERED AT KISUMU THIS 23RD DAY OF JANUARY 2025Nzioki wa Makau, MCIArb.JUDGE